Crystal House Manor, Inc. v Anthony Totura

Crystal House Manor, Inc. v Totura 2006 NY Slip Op 04230 [29 AD3d 933] May 30, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Crystal House Manor, Inc., et al., Respondents,
v
Anthony Totura et al., Appellants.

—[*1]

In an action, inter alia, to set aside an allegedly fraudulent conveyance of real property, the defendants appeal from an order of the Supreme Court, Dutchess County (Dolan, J.), dated May 3, 2005, which denied their motion, in effect, for leave to renew that branch of the plaintiffs' motion which was for a protective order denying the defendants' request to conduct DNA testing of the plaintiff James K. Rogers, which had been determined in an order of the same court dated February 1, 2005.

Ordered that the order is affirmed, with costs.

Contrary to the defendants' contention, the Supreme Court properly denied their motion, in effect, for leave to renew, since they failed to establish either that the alleged new evidence was previously unavailable, or that there was a reasonable justification for their failure to present the proffered additional facts in opposition to the original motion (see CPLR 2221 [e]; see e.g. Gohrig v Porcelli, 17 AD3d 314 [2005]; Hannalyn Realty Co. v McLaughlin, 10 AD3d 409 [2004]; Hart v City of New York, 5 AD3d 438 [2004]; Ortiz v Tusa, 300 AD2d 288 [2002]). Moreover, the proffered "new evidence" failed to negate the speculative nature of the defendants' request to conduct DNA testing of the plaintiff James K. Rogers. Adams, J.P., Mastro, Fisher and Covello, JJ., concur.